Muraba & 3 others v Gikua (Environment and Land Appeal E034 of 2024) [2026] KEELC 4854 (KLR) (27 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **KAJIADO LAW COURTS** **ELC APPEAL NO E 034 OF 2024** **PAUL KIMANI MURABA & 3OTHERS…….. ……………APPELANT** **VERSUS** **MARY WAIRIMU GIKUA........………………………..... RESPONDENT** *(Being an appeal from the Judgement and Decree of the Chief Magistrate’s Court at Kajiado before Hon. Roseline A. Oganyo (CM ) dated 6th September 2024 in ELC 91 of 2019 – Mary Wairimu Gikua versus Paul Kimani Muraba & others* **JUDGEMENT** **Background:** 1. The Respondent who was the Plaintiff in the Magistrates Court filed a suit seeking an order of eviction against the Appellant who was the Defendant in the suit. The Plaintiff further sought a demolition order compelling the Defendant to remove all the illegal structures and crops on LR No Ngong/Ngong/ 92776 ( *hereinafter referred to as the suit property)*. Lastly the Plaintiff sought an order of permanent injunction. 2. The Plaintiffs case was that he was the registered owner of the suit property which was excised from Ngong/ Ngong/ 6138 in 2018. The Plaintiff alleged that Ngong/ Ngong/ 6138 was originally owned by his mother who had a case HCCC NO 233 OF 2008 , Machakos, with the Defendant, the Appellant herein. This suit was decided in favour of the Defendant who was declared to be an adverse possessor. 3. An appeal was filed against this Judgement in the Court of Appeal which set aside the High Court Judgement on 2nd December 2016. It was the Plaintiffs contention that the Defendant failed to vacate the property as a result of which the Plaintiff filed an application Kajiado Misc 16 of 2017 which was dismissed for technical reasons as there was no accompanying suit to the application. Anothr suit HCCC 713 of 2011 seeking eviction was similarly dismissed for want of prosecution on 20th March 2015. Ultimately it was the Plaintiffs case that the Defendants refusal to vacate the suit property was an infringement of her right to enjoy the use of her property. 4. The Defendants filed a Defence in which they deposed that the sub division of Ngong /Ngong /6138 into Ngong/ Ngong/ 92775, Ngong/ Ngong/ 92776 and Ngong/ Ngong/ 92777 was fraudulent. They referred to the two earlier suits that were filed by the Plaintiff and urged the court to strike out the suit as an abuse of the process of the court. They further contended that the court had no pecuniary jurisdiction to hear the matter. 5. After hearing the parties and considering the submissions by both parties, the learned magistrate distilled the sole issue for determination as ownership of the suit property. 6. The learned magistrate in a Judgement delivered on 5th September 2024 found that the Court of Appeal had settled the issue of adverse possession. She therefore found that she could not revisit the issue of ownership. She consequently allowed the prayers for eviction and permanent injunction. It is this Judgement which the Appellant has appealed against. **Grounds of Appeal** 1. Vide an amended memorandum of appeal dated 11th September, 2024, the Defendants/ Appellants cite the following grounds; 2. **Treating a prior Court of Appeal decision as conclusively determinative of the present dispute;** 3. **Failing to independently evaluate the Appellant’s case; and** 4. **Granting eviction orders in disregard of long-standing occupation and overriding interests.** 5. This court gave directions that the appeal be canvassed by way of written submissions. Both parties filed submissions. 6. The Appellants submit that the learned magistrate erred by treating the Court of Appeal decision as binding on all aspects. That the dispute before the learned magistrate was distinct from the dispute which was before the Court of Appeal. As such she failed to distinguish between individual and estate based claims. This resulted in a failure to consider the long occupation of the estate of which was an overriding interest. 7. It is the Appellants case that the learned magistrate should have considered the long period of occupation of the deceased’s estate since 1982. The Appellants further submit that the trial court did not address the issue of Res Judicata and abuse of the process of the Court. 8. On their part, the Respondents submit that the issue of adverse possession was fully determined by the Court of Appeal. That the Respondent was able to demonstrate that she has a valid title which the Appellants did not seek to cancel. That the Appellants did not plead adverse possession or cancellation of title hence the Court cannot be faulted for failing to grant the order. 9. This being a first appeal, this court is under a duty to reconsider the evidence adduced and analyze it so as to be able to reach its own independent conclusions and thus determine whether the conclusions reached by the trial court are consistent with the evidence and the applicable law, and will only depart from the findings by the trial Court if they were not based on evidence on record or where the said Court is shown to have acted on wrong principles of law or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah (1968) EA 93 . 10. ***In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court held that:*** *“this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”.* 1. An appellate Court would not normally interfere with exercise of the discretion of the lower court unless it has not been exercised judiciously. As to what the term “discretion” means the Court in ***The Supreme Court of Uganda, in Kiriisa v Attorney-General and Another [1990-1994] EA 258*** stated that: *“Discretion simply means the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitable and reasonable in those circumstances.”*. 2. Having considered the grounds of appeal, the submissions and the guiding principles for this court as an Appellate court, the issues that fall for determination are: * **Whether it was an error to rely on the judgment of the Court of Appeal without independently determining the question of ownership;** * **Whether the Respondent's suit was statute-barred;** * **Whether the suit was Res Judicata and abuse of the court process; and** * **Whether the Appellant's occupation constituted an overriding interest under section 28 of the Land Registration Act.** 1. The appellant's principal complaint is that the learned magistrate treated the Judgment of the Court of Appeal as determinative of the dispute without considering that the estate of his late father, which was in occupation of the suit property from 1982, was not a party to the adverse possession proceedings. He contends that whereas the Court of Appeal determined only his personal claim for adverse possession, the estate's claim remained unresolved. Consequently, the trial court ought to have considered whether the estate had acquired title by adverse possession, whether the Respondents claim was statute-barred and whether the estate's occupation constituted an overriding interest. 2. The record shows that the Court of Appeal expressly found that the Appellant instituted the adverse possession proceedings in his own capacity and not on behalf of the estate of his deceased father. The Court further held that the Appellant's possession had been interrupted and that the ingredients necessary to establish adverse possession had therefore not been proved. It accordingly set aside the Judgment of the High Court. 3. These findings were binding upon the subordinate court. The learned magistrate had no jurisdiction to reopen, review or disregard the factual and legal findings made by the Court of Appeal. 4. While the Appellant argues that the estate's rights remained undetermined, no counterclaim or other substantive pleading was filed before the trial court seeking a declaration that the estate had acquired title by adverse possession or otherwise. Adverse possession is a substantive cause of action which should have been specifically pleaded and proved. Likewise, any claim asserting proprietary rights on behalf of the estate had to be properly pleaded before the trial court. Courts determine disputes on the basis of the pleadings before them and cannot grant relief which has neither been sought but are only brought up during submissions. 5. The Appellant further submits that the Respondent's claim was statute-barred because his father's occupation commenced in 1982. However, the question whether the Respondent's title had been extinguished through limitation is inextricably linked to a properly pleaded claim for adverse possession. In the absence of a counterclaim asserting such rights on behalf of the estate, and in light of the Court of Appeal's binding determination that adverse possession had not been established by the Appellant, the learned magistrate cannot be faulted for failing to determine that issue afresh. 6. The Appellant further contends that the Respondent's suit was barred by the doctrine of *Res Judicata* because the Respondent had previously instituted a suit which was dismissed for want of prosecution and had also filed a miscellaneous application which was dismissed the Court after the Court held that the suit should have been instituted by way of Plaint. He therefore argues that the subsequent eviction proceedings amounted to an abuse of the court process. 7. **Section 7 of the Civil Procedure** **Act** bars a court from trying a matter that has been directly and substantially in issue in a former suit between the same parties and which has been heard and finally determined by a court of competent jurisdiction. A dismissal for want of prosecution does not amount to a determination on the merits of the parties' substantive rights. While the procedural step to have taken would have been to seek reinstatement of the suit, failure to do so did not take away the jurisdiction of the court to hear the matter. 8. Equally, dismissal of a miscellaneous application on procedural grounds, including failure to institute a substantive suit, does not constitute a final adjudication of the parties' rights. Although repeated litigation may in appropriate circumstances amount to an abuse of the court process, the record before this Court does not demonstrate that the Respondent obtained a substantive determination in the earlier proceedings which would render the eviction suit oppressive or an abuse of the court's process. 9. The Appellant further argues that the occupation of the suit property by his late father's family since 1982 constituted an overriding interest under section **28 of the Land Registration Act** which defeated the Respondent's claim for eviction. 10. While **section 28(b)** recognizes the rights of persons in actual occupation as overriding interests, actual occupation alone does not confer proprietary rights capable of defeating a registered proprietor's title. The occupation must be founded upon a legally recognizable proprietary or equitable interest. In the present case, the occupation relied upon is the very occupation that formed the foundation of the unsuccessful adverse possession proceedings. To characterize that same occupation as an overriding interest would effectively require the trial court to revisit issues already determined by the Court of Appeal. 11. However, the fatal blow to the Appellants suit is that no independent prayer or claim on behalf of the estate was pleaded before the trial court. In the absence of such pleadings, the learned magistrate had no basis upon which to determine the rights of the estate. It is trite that parties are bound by their pleadings. This court empathizes with the Appellants situation on occupation but holds that the court cannot determine or grant relief on matters which were not pleaded. 12. Ultimately, the learned magistrate correctly appreciated that the Judgment of the Court of Appeal conclusively determined the issues arising from the Appellant's claim of adverse possession. The trial court properly confined itself to the issues arising from the pleadings before it and did not err in declining to reopen matters already settled by a superior court or in failing to determine unpleaded claims on behalf of the deceased's estate. 13. Accordingly, I find that the appeal is devoid of merit and is hereby dismissed with no orders as to costs. **Judgement Signed dated and delivered via Microsoft teams this** 27th **day of July** **2026** **JUDY OMANGE** **JUDGE** **In the presence of:** M/s Makhoka for the Appellant. Mr Obok for the Respondent. Peter - Court Assistant.